Foreclosures For Sale Updated On: 03/17/10
South Dakota Foreclosure Laws
South Dakota Foreclosure Laws
South Dakota chiefly functions as a title theory state, wherein the title of a property stays as assurance till the loan in question is paid off in full. A mortgage is that document which keeps the title secure. Mortgages usually contain information that is found in deeds of trust and they function as the same in non-judicial foreclosures.
A non-judicial foreclosure is the most extensively used process followed to foreclose on a property in South Dakota. In this method, no court-action is needed, but a foreclosure by advertisement notice is required. For selling a property to take care of the loan that has been defaulted on, an attorney can use the power of sale clause which is mostly inserted in the mortgage at the initial signing period. A sheriff conducts the auction.
This being a non-judicial alternative, very strict requirements for notices are in place, and the presence of the power of sale clause in the mortgage is necessary to follow this method of foreclosure.
A foreclosure notice must be published before foreclosure is initiated. A copy of the notice of foreclosure sale date then has to be published in a general circulation newspaper within the county where the property is situated, for a period of four consecutive weeks.
A minimum of twenty one days before the sale of the foreclosure, the property that is facing foreclosure has to be served with the above mentioned foreclosure notice. A homestead property would require an eight week notice before the sale.
Sales of foreclosures normally take place between 09:00am and 05:00pm. The property is auctioned by the sheriff and goes to the bidder who places the highest bid; this could be the lender too. The sheriff can postpone the sale of the foreclosure with the posting of the postponement notice in the same newspaper that was used to advertise the sale originally.
Lenders in South Dakota can also opt for a judicial foreclosure which takes place through a court, and it is the court that pronounces the final decision on the foreclosure. This procedure is referred to as foreclosure by action. The property then sells at a sale that has been publicly notified. A complaint, in conjunction with a lis pendens (a legal document which is used to issue a notice to the public about the property in foreclosure) needs to be filed in court.
The legal papers are generally referred to as the mortgage, and in cases of commercial transactions, a security agreement. The security agreement is, now and again, merged with the mortgage document. A mortgage can also be filed to validate the said loan and its repayment terms, which are cited in the note.
It generally takes about 90 to 150 days to bring into effect a non-judicial foreclosure that is not contested; this does depend on the time necessary by different notices. If the action is contested in the court by the borrower and if the sale is sought to be postponed, or if bankruptcy is being filed for by the borrower, there can be a delay in the process.
South Dakota has a statutory right of redemption through which a foreclosed property can be reclaimed by the owner upon payment of the unpaid loan and costs in full. This can be done within a one year period from the sale. In some circumstances, the redemption period is reduced to 180 days and in cases where the property in foreclosure is vacant, the redemption period is reduced to two months.
In cases where a property sells for less than the amount on the loan secured by the mortgage in question at the public auction sale, the lender may obtain a deficiency judgment. Credit for the property’s fair market value has to be given.
Non-judicial foreclosures in South Dakota are governed by laws that are part of South Dakota Codified Laws, Chapter 21-48 et. seq. (Foreclosure of Real Property Mortgage by Advertisement).
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